IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL C OURT), B BENCH, MUMBAI BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI M.BALAGANESH, ACCOUNTANT MEMBER ITA NO. 58/MUM/201 9 ( ASSESSMENT YEAR :2009-10 ) NIMBARK GEMS 6, UNITY HOUSE, 8 MAMA PARMANAND MARG, OPERA HOUSE MUMBAI-400 004 VS. ACIT - 16(3) MATRU MANDIR, TARDEO MUMBAI-400 007 PAN/GIR NO. AA GFN2924G (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY NONE REVENUE BY SMT. KAVITA P. KAUS HIK, SR.DR DATE OF HEARING 1 4 /10/2020 DATE OF PRONOUNCEMENT 14 /10/2020 / O R D E R PER S.S.GODARA (J.M ) : THIS ASSESSEES APPEAL FOR A.Y.2009-10 ARISES FROM MUMBAIS ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-30, IN CASE NO.CIT(A)-30/ACIT 19(3)/277/2011-12 DATED 30/11/201 8, IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS ACT]. 2. NONE APPEARS AT THE ASSESSEES BEHEST. WE HAVE PROCEEDED WITH THE LEARNED DEPARTMENTAL REPRESENTATIVES ARGU MENTS THAT BOTH THE LOWER AUTHORITIES HAVE RIGHTLY INVOLVED SECTION 40A(3) DISALLOWANCE AFTER HOLDING THIS TAX PAYER TO HAVE M ADE CASH PAYMENTS OF FACTORY PREMISES EXPENSES, REPRESENTA TIVE CHARGES AND FOREIGN TRAVEL EXPENSES INVOLVING SUMS OF RS.1 ,81,600/-, ITA NO.58/MUM/2019 M/S. NIMBARK GEMS 2 RS.30,000/-AND RS.33,650/-, RESPECTIVELY, TOTALING TO RS.2,45,250/-. THE ASSESSEES FIRST AND FOREMOST PLEA BEFORE THE L OWER AUTHORITIES WAS THAT IMPUGNED STATUTORY PROVISION DOES NOT APPL Y IN FACTS OF THE INSTANT CASE SINCE ALL THESE SUMS FORM PART OF THE CAPITAL THAN REVENUE ACCOUNT. THIS ASPECT APPEARS TO HAVE MISSED THE LEARNED LOWER APPELLATE AUTHORITYS CONSIDERATION AS PER IT S ORDER UNDER CHALLENGE. WE THEREFORE DEEM IT APPROPRIATE TO REST ORE THE ISSUE BACK TO CIT(A) FOR HIS APPROPRIATE ADJUDICATION AS PER LAW WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. 3. THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE IN ABOVE FACTS. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14/10 /2020 SD/- (M.BALAGANESH) SD/- (S.S.GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED 14/10/2020 THIRUMALESH , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//